On the fourth anniversary of Citizens United, the system appears poised to become more askewed nationally, but reform could emerge at the state level.
This week saw the fourth anniversary of the U.S. Supreme Court decision Citizens United v. the Federal Election Commission. The ruling reversed a lower court’s ruling that banned the airing and advertising of a film critical to then-presidential candidate Hillary Clinton on broadcast television.
The Bipartisan Campaign Reform Act of 2002 — also known as the McCain-Feingold Act — explicitly prohibited the airing of political ads 30 days prior to a primary.
In its decision, the Supreme Court created a precedent in which political contributions are recognized as free speech and in which corporations and unions are not constrained by the amount of money they can donate — as long as the money does not go directly to a candidate.
In the four years since the ruling, the role of money in the electoral process has grown to unprecedented levels. As reported by Demos, in 2012, the top 32 Super PAC donors — offering on average $9.9 million — matched the donations Barack Obama and Mitt Romney collected from all of their small donation givers. In other words, 32 super-donors made as large an impact on the major presidential candidates as at least 3.7 million people.
In his 2010 State of the Union speech, President Obama reprimanded the court on the perceived hijacking of the election system that the ruling represents:
“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections,” the president said. “I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.”
The death of federal campaign finance reform
This represents a distorted system in which a select few votes have greater weight than that of the majority of the populace. While corporations — in general — shun Super PACs in favor of corporate lobbying and other forms of undisclosed influence-peddling, the Citizen United ruling has given billionaires, usually acting out of personal interest, an uncontested podium in American politics.
“Citizens United has become the all-purpose boogeyman,” said Bradley Smith, an election law expert and founder of the Center for Competitive Politics. “Whatever you hate about campaigns, blame Citizens United.”
As the Supreme Court prepares to release its ruling on McCutcheon v. Federal Election Commission — which could erase the limit an individual can give to a candidate during an electoral cycle — the system of influence is poised to become more askewed. However, the question of campaign finance reform existed before Citizens United and — while Citizens United gave mega-donors more ways to hide their sponsorship actions — the discussion of undue influence on the democratic system has never reached a satisfactory conclusion.
The lack of motion on the issue on the federal level is manifest with the current fight in the Republican Party between the business sector-supported mainstream and the Super PAC-supported Tea Party. While this represents a rolling-back of progress on campaign finance reform to levels last seen in the wake of the Watergate scandal, states and local communities are coming up with solutions toward addressing the concern.
The New York example
In New York state, for example, Democratic Gov. Andrew Cuomo has taken the first steps in bringing into effect something he has called for in every single State of the State address he has given since taking office in 2010 — publicly funded elections.
“This is a red-meat issue, not just a blue-haired old lady issue; it’s not just the goo-goos who want this,” said Mike Kink of Strong Economy for All, a coalition of labor and community groups. “This links the populist economic message with the good-government message in a way that has a lot of emotion and drive behind it right now. This is about making government more responsive to regular people and less responsive to big donors.”
Cuomo intends to include funding in the state’s budget to pay for a six-to-one small donation matching system similar to the system already in place in New York City. Cuomo has also called for $5.3 million to be used to create an enforcement arm for the state’s Board of Elections, which has been criticized for being lenient on the enforcing of election laws.
Finally, the governor placed a $25,000 contribution limit and a $500 transfer limit to candidates on the state party housekeeping committees, which can theoretically collect unlimited donations for party infrastructure, but usually transfer funds to other party committees — such as campaign committees.
“People are believing in New York,” Cuomo said in his remarks concerning the proposals. “The one omission is ethics, and it’s the one negative they hear over and over and over, because it’s a drip, drip, drip of these negative one-off stories, and it has to be addressed.”
While the Democratic-controlled assembly is on board with the governor’s proposed reforms, the Republican-controlled senate feels that the reforms will offer an uneven hand to current incumbents.
“It’s $200 million in taxpayer money to pay for robocalls people hate, or to support candidates they disagree with philosophically,” said Senate Republican leader Dean Skelos. “It is wrong and the money would be better spent on education, infrastructure improvements and pre-K.”
However, due to the current member rundown in the state’s upper house, if the Senate’s four-member Independent Democratic Conference were to agree with the Senate Democratic Conference and the Assembly Democrats on an acceptable version of the governor’s proposal, public financing — which has been the traditional scorn of the state Republicans — would be a reality in the state.
“It certainly is a step forward; there’s a long way to go,” said Blair Horner, legislative director for the New York Public Interest Research Group. “The budgetary issue which will be the test is the issue of this campaign finance enforcement agency, because it’s going to be a hard sell to the legislature and the public to flush more money down the drain.”
Cuomo, however, has amassed the single-largest re-election war chest of any governor running in 2014 –$33.3 million — despite a call for public financing. Backed by major fundraising efforts, including a recent high-dollar fundraiser hosted in his honor by Jeffrey Katzenberg, Brad Grey and Steven Spielberg, the governor is actively exploiting the limits of current campaign laws. But many argue that this is not necessarily a bad thing, as long as the less-connected candidates have a means of competing.
“The Democratic base is inspired and engaged by people like Bill de Blasio and Elizabeth Warren who are willing to fight for the 99 percent against the one percent,” said Citizen Action of New York Executive Director Karen Scharff. “Regardless of what the governor needs to do for his own fund-raising, he should do something to show he’s willing to do something for people who can’t give big campaign contributions.”